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Five highlights from NRLC’s and Louisiana’s brief to the Supreme Court in the Mississippi case of Dobbs v. Jackson Women’s Health Organization

by | Jul 27, 2021

By Dave Andrusko

Today’s exceptionally helpful lead story is an announcement from National Right to Life that along with Louisiana Right to Life, NRLC has filed a brief with the Supreme Court in Dobbs v. Jackson Women’s Health Organization. At issue is Mississippi’s ban, enacted in 2018, on abortions after15 weeks of pregnancy with very limited exceptions. The justices have agreed to hear the case and narrowed what they will consider down to one crucial point: “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional?”

Please read our lead story first. What follows below is a supplement–five highlights from the brief. All internal citations are omitted for clarity.

#1. The very first sentence of the “Summary of Argument” reads, “Eliminating a ‘jurisprudence of doubt’ was the goal in Planned Parenthood of Southeastern Pennsylvania v. Casey. So this Court provided a roadmap for abortion jurisprudence, replacing the strict-scrutiny, trimester roadmap of Roe v. Wade, with the more- deferential undue burden (i.e., substantial obstacle) roadmap.” Much of the brief is a thoughtful and very thorough explication of how that 1992 Casey roadmap (to borrow from the book, “The Road We Must Travel”) has been “folded, creased, scribbled on, and repaired with Scotch tape.”

The need to eliminate doubt is “especially true of abortion jurisprudence, which is built on legal anomalies that create the abortion-distortion effect, whereby normal rules are bent to make Roe’s abortion right more absolute,” the NRLC-Louisiana Right to Life brief continues. “This effect was evident in the soon replacement of Casey’s substantial-burden test with burden-benefit balancing in Whole Woman’s Health v. Hellerstedt, (2016), the results of which were followed by a splintered Court in June Medical Services v. Russo (2020). Now a jurisprudence of doubt again exists, with lower courts even more confused …” 

Dobbs gives the High Court the opportunity to clear up the confusion. 

As the summary concludes, “[T]he new roadmap should emphasize that normal rules of law must be applied by courts and will be by this Court, which will begin to reverse the anomalies on which Roe’s tangent from normal legal norms was built.”

#2. What (and how) should the new roadmap accomplish? It “should guide the way back from Roe’s tangential departure from normal legal norms by fully embracing relevant state interests and normal rules.” Going all the way back to Roe, the Supreme Court has acknowledged the state’s interest in what happens to unborn babies and their mothers. This brief helps the justices see the full panoply of the state’s interests.

#3. The viability issue, specifically “whether all pre-viability prohibitions on elective abortions are unconstitutional?” NRLC and Louisiana Right to Life maintain that “First, it [the Court] should reject Casey’s viability line, which lacks justification in logic or biology, by answering the question before the Court with a clear ‘no.’” 

The sharper and more astute pro-abortion attorneys have long acknowledged that “viability” is not a fixed point but an ever-changing product of medical technology. Referring to fetal viability occurring earlier and earlier in pregnancy, former Supreme Court Justice Sandra Day O’Connor once famously wrote, “The Roe framework, then, is clearly on a collision course with itself.”

Or, as the brief puts it succinctly, “The viability line was nonsensical in Roe, and its reaffirmation in Casey made no more sense.”

#4. Second, since there “is no categorical viability line,” the new roadmap should “make clear that, because all state interests may be considered pre-viability (as also post viability),” courts “should consider the assertion of such interests and supportive evidence.”

#5. What are those interests? “In protecting maternal health, preborn human life, the medical profession, and civil society” but also making “clear that other interests may be asserted and considered with evidence not being barred by any categorical viability line.”

Moreover, “the new roadmap should then clarify that courts should consider the weight of any asserted state interests to determine if the state interests justify the abortion regulation at issue under the appropriate level of scrutiny to which the law is subject, i.e., there are no categorical lines precluding this normal court function. ”

The roadmap that is needed here, the brief argues,

is well justified because what is required is not one creating new lines without constitutional support (as in Roe’s trimester framework and Casey’s viability line) but rather an instruction to lower courts to return to normal rules in abortion cases and a strong declaration to courts and legislatures that this Court will be doing so too.

NRLC’s General Counsel James Bopp, Jr., of The Bopp Law Firm, put it forthrightly when he said “Since Roe v. Wade, the Supreme Court has twisted the normal rules of law to protect an absolute abortion right and not given full effect to powerful state interests such as protecting preborn life and maternal health. Today, we ask the Court to reverse that tangential path, which will allow greater regulation of abortion, lead to stability in the law, and put Roe itself at issue.”

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